Edan Rutherford v Service Plus Autocare Pty Ltd

[2017] FWC 6558

[2017] FWC 6558

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Edan Rutherford
v
Service Plus Autocare Pty Ltd
(U2017/11853)

DEPUTY PRESIDENT CLANCY MELBOURNE, 11 DECEMBER 2017

Application for an unfair dismissal remedy.

[1] On 8 November 2017, Mr Edan Rutherford made an application (the Application) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The covering email to the Application, filed by his representative, said “[t]he Applicant may be contacted on his mobile telephone number for payment of the filing fee by card.”

[2] Also on 8 November 2017, the Fair Work Commission telephoned Mr Rutherford in relation to payment of the filing fee. Mr Rutherford advised he would apply for a fee waiver. Following the telephone discussion, the Commission sent correspondence via email to Mr Rutherford and his representative, providing a copy of the Form F80 – Waiver of application fee. The correspondence noted that if the application fee was not paid or the application to have the fee waived was not completed within 14 days, Mr Rutherford’s application may be dismissed.

[3] As a completed waiver form had not been received or payment made, the Commission telephoned Mr Rutherford on 21 November 2017, who advised he still wished to complete the fee waiver form and would lodge it promptly.

[4] On 28 November 2017, a voicemail message was left with Mr Rutherford regarding the outstanding filing fee. Following this, on 30 November 2017, Mr Rutherford telephoned the Commission and advised he wished to continue and intended to pay the filing fee the following day once he had been paid.

[5] To date, Mr Rutherford has not made payment of the application fee and no application for fee waiver has been received.

[6] Section 395, which deals with application fees, provides:

395 Application fees

(1) An application to the FWC under this Division must be accompanied by any fee prescribed by the regulations.

(2) The regulations may prescribe:

(a) a fee for making an application to the FWC under this Division; and

(b) a method for indexing the fee; and

(c) the circumstances in which all or part of the fee may be waived or refunded.

[7] Section 587(1) of the Act provides:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

[8] Having regard to the circumstances of this matter, I am satisfied that as the application was not accompanied by the fee prescribed by the Act, the application was not made in accordance with the Act. As such, the application is dismissed pursuant to s.587(1)(a) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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